International standards - I1

"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief [.]."

ICCPR

Art. 18 (1) : "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice [.]."

1981 Declaration of the General Assembly

Art. 1 (1) : "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice [.]."

Human Rights Committee general comment 22

Para . 3 : "Article 18 does not permit any limitations whatsoever on the freedom of thought and conscience or the freedom to have or adopt a religion or belief of one's choice;".

Para . 5 : "The Committee observes that the freedom to 'have or to adopt' a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief."

70. The Universal Declaration of Human Rights sets forth, in article 18, the principle that "everyone has the right to freedom of thought, conscience and religion", and clearly states that such a right "includes freedom to change his religion or belief and freedom, either alone or in community with others, and in public or private, to manifest his religion or belief in teaching, practise, worship and observance".

71. The 1966 International Covenant on Civil and Political Rights and the 1965 International Convention on the Elimination of All Forms of Racial Discrimination follow in the direction set by the 1948 Declaration but do not explicitly restate the right to change religion.

72. Article 18 of the International Covenant on Civil and Political Rights offers general recognition of the right "to have or to adopt" a religion of one's choice.

73. The 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief also makes general provision for the "freedom to have a religion or whatever belief of [one's] choice". Like the International Covenant on Civil and Political Rights, it contains no formal, explicit statement of the right to change religion, but the omission cannot be interpreted as betokening an intention to dilute the provisions of the 1948 Declaration.

74. The World Conference on Human Rights (Vienna, June 1993), while acknowledging concerns about specifics and invoking national legislation, strongly reaffirmed the universal nature of human rights.

75. The variety of formulations used to refer to the acknowledgement and development of religious freedom do not amount to a denial of the right to change religion.

76. Lastly, many formulations address a single point. They have cast doubt on the underpinnings of religious freedom and lent support to those who believe that religious freedom cannot extend to recognition of the right to change religion.

77. It is now established that religious freedom cannot be dissociated from the freedom to change religion. 78. As long ago as 1986, Elisabeth Odio Bénito wrote of the 1948 and 1981 Declarations and the International Covenant on Civil and Political Rights that, although they varied slightly in wording, all meant precisely the same thing: that everyone had the right to leave one's religion or belief and to adopt another, or to remain without any at all. That meaning, she added, was implicit in the concept of the right to freedom of thought, conscience, religion and belief, regardless of how the concept was presented.

79. In its general comment 22 on article 18 of the International Covenant on Civil and Political Rights, the Human Rights Committee reached the same conclusion. It observes that the freedom to "have or to adopt" a religion or belief necessarily entails a freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief.

80. The Special Rapporteur therefore emphasizes once again the right to change religion as a legally essential aspect of religious freedom."

E/CN.4/2005/61, paras. 45-47:

"C. Conversions

45. The Special Rapporteur has addressed the issue of conversion in a number of communications, in which she used the term to include situations where there has been an alleged infringement on the freedom to change, maintain or adopt a religion or a belief. While these communications have not very often dealt with situations where people had been arrested, tried or otherwise challenged because they had converted to another religion, there were a number of cases of persons being arrested because of their beliefs, and where there had been an attempt to force them to renounce or abandon their faith. This has been the case in communications sent to the Governments of China, Saudi Arabia, the Lao People's Democratic Republic, Egypt, and Turkmenistan.

46. The Special Rapporteur considers such acts as unacceptable forms of violations of the right to freedom of religion or belief because, in essence, they limit or tend to limit the freedom of thought or conscience itself (or what is sometimes called the "forum internum"), which, according to the main international instruments, forms the part of the right to freedom of religion or belief that is not susceptible to any limitation.

47. In this regard, the Special Rapporteur emphasizes that, according to general comment No. 22 of the Human Rights Committee, freedom to "have or to adopt" a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief. Article 18, paragraph 2, of the Covenant bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of ICCPR, are similarly inconsistent with this article. The same protection is enjoyed by holders of all beliefs of a non-religious nature. [general comment No. 22 on article 18 of the International Covenant on Civil and Political Rights, adopted by the Human Rights Committee at its forty-eighth session (1993), para. 5]."

A/60/399, paras. 40-68:

"A. The question of conversion

40. The questions related to change of religion are at the very heart of the mandate on freedom of religion or belief. Violations and limitations of this aspect of the right to freedom of religion are unacceptable and still occur too often. In this section, the Special Rapporteur would like to give an overview of the problem as well as of the applicable standards. She wishes to emphasize that the complexity of the question, which includes many different situations, requires that it be examined further.

1. Types of situations reported under the mandate

41. The mandate of the Special Rapporteur on freedom of religion or belief has received numerous reports of situations related to the question of the right to have or adopt a religion of one's choice, including cases of alleged forcible and so-called "unethical" conversions. On the basis of these reports, it is possible to identify four broad types of situations. It should be noted that certain cases may fall within more than one type of situation.

(a) Situations, where state agents try to convert, re-convert or prevent the conversion of persons

42. These reports describe situations where State officials at different levels, often municipal, and different institutions (police, army) tried to convert members of religious groups, often of minority religious communities, or to force them to renounce their beliefs. They did so by threatening to kill them or their relatives, depriving them of their liberty, torturing and ill-treating them or threatening to dismiss them from their jobs. In some instances State officials tried to make believers renounce their religion and join a State-approved religion.

(b) Situations, where religious conversion is prohibited by law and punished accordingly

43. The punishment for conversion can consist of arrest and trial for "apostasy", imprisonment, and sometimes the death penalty. In some countries other penalties can be imposed, such as the suspension of all contracts and inheritance rights, the annulment of marriages, loss of property or the removal of children. Administrative requirements can also make it difficult to change one's religion or belief: in a number of cases converts have found it impossible to obtain identity cards after having changed their religion. Where conversion is not actually prohibited by law, converts can be harassed or threatened by State and religious officials.

(c) Situations where members of majority religious groups seek to convert or reconvert members of religious minorities

44. This includes cases where local members of the clergy lead attempts to convert or groups of believers attack members of minority religious groups or their places of worship with the aim of converting them.

(d) Situations where so-called "unethical" conversions have been reported

45. These situations include cases where members of religious groups try to convert other people by "unethical" means such as the promise of material benefit or by taking advantage of the vulnerable situation of the person whose conversion is sought. Such conversions are sometimes prohibited by law and the acts facilitating such conversion may constitute a criminal offence. In some countries, legislation prohibits conversion without prior notification of the authorities or defines "forcible" conversion in broad terms.

2. Applicable standards

46. The Special Rapporteur notes that, according to universally accepted international standards, the right to freedom of religion or belief includes the right to adopt a religion of one's choice, the right to change religion and the right to maintain a religion. She also notes that these aspects of the right to freedom of religion or belief have an absolute character and are not subject to any limitation whatsoever.

47. Article 18 of the Universal Declaration of Human Rights states that the right to freedom of thought, conscience and religion "includes freedom to change [one's] religion or belief". Article 1 of the 1981 Declaration states that "[t]his right shall include freedom to have a religion or whatever belief of [one's] choice" and that "[n]o one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice".

48. The content of article 18, paragraph 1, of the International Covenant on Civil and Political Rights (ICCPR) is the result of a lengthy process of discussion in the Human Rights Commission and the third Committee of the General Assembly. The wording initially proposed was "Everyone should have the freedom to maintain or to change his religion", but, following opposition by some countries which feared that this formulation would lend encouragement to proselytism and anti-religious propaganda, it was changed to "have or to adopt a religion or belief of his choice", a wording that was adopted without dissent. This final version of the provision was undoubtedly intended to include the right to convert from one religion or belief to another. The Human Rights Committee, in paragraph 5 of its general comment No. 22 (1993) on article 18, observed that "the freedom to 'have or to adopt' a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief."

49. The fact that article 18, paragraph 3, of the Covenant to be imposed only on the manifestation of religion or belief clearly assigns the freedom to "have or to adopt a religion or belief" to the first part of paragraph 1, freedom of thought, conscience and religion, also called forum internum, which cannot be interfered with in any way. In its general comment No. 22 the Human Rights Committee states clearly that article 18 "does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one's choice" (para. 3).

50. This prohibition of limitation is reinforced by paragraph 2 of the same article, which provides that "[n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice." The fact that the prohibition of coercion was made explicit shows that the drafters of the Covenant found the freedom provided by paragraph 1 to be so significant that any form of coercion by the State was impermissible, independently of whether the coercion was physical or in the form of State-sponsored incentives. According to the Human Rights Committee:

"Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of the Covenant, are similarly inconsistent with article 18.2" (general comment No. 22, para. 5).

51. The Special Rapporteur notes that there is a clear prohibition under international human rights law of coercion to change or maintain one's religion. She also draws attention to the fact that the term "coercion" in article 18, paragraph 21, is to be broadly interpreted and includes pressure applied by a State or policies aiming at facilitating religious conversions. In the case Kang v. Republic of Korea, the Human Rights Committee found the "ideology conversion system" as well as the succeeding "oath of law-abiding system" to be in violation of article 18, paragraph 1, of the Covenant. [Views of the Human Rights Committee in Kang v. Republic of Korea, adopted on 15 July 2003 (CCPR/C/78/D/878/1999), para. 7.2: "As to the author's claim that the 'ideology conversion system' violates his rights under articles 18, 19 and 26, the Committee notes the coercive nature of such a system, preserved in this respect in the succeeding 'oath of law-abidance system', which is applied in discriminatory fashion with a view to [altering] the political opinion of an inmate by offering inducements of preferential treatment within prison and improved possibilities of parole. The Committee considers that such a system, which the State party has failed to justify as being necessary for any of the permissible limiting purposes enumerated in articles 18 and 19, restricts freedom of expression and of manifestation of belief on the discriminatory basis of political opinion and thereby violates articles 18, paragraph 1, and 19, paragraph 1, both in conjunction with article 26."]

52. The same is true, mutatis mutandis, for prohibition of conversions. Since the choice of religion or belief is part of the forum internum, which allows for no limitations, a general prohibition of conversion by a State necessarily enters into conflict with applicable international standards. A law prohibiting conversion would constitute a State policy aiming at influencing individual's desire to have or adopt a religion or belief and is therefore not acceptable under human rights law. A State also has the positive obligation of ensuring the freedom of religion or belief of the persons on its territory and under its jurisdiction.

53. In the cases where non-State actors interfere with the right to "have or adopt a religion or belief of [one's] choice", the requirements of article 18 of the Covenant and other relevant international instruments also entail a positive obligation for the State to protect persons from such interference. The Special Rapporteur wishes to re-iterate in this regard that States must ensure that the persons on their territory and under their jurisdiction, including members of religious minorities, can practise the religion or belief of their choice free of coercion and fear. If non-State actors interfere with this freedom, and especially the freedom to change or to maintain one's religion, the State is obliged to take appropriate measures to investigate, bring the perpetrators to justice and compensate the victims (see also E/CN.4/2005/61, para. 42).

54. Finally, the Special Rapporteur notes that with regard to children, the choice of religion is restricted by the parents' rights to determine their child's religion up to an age where the child is capable of doing so on his/her own, in accordance with article 18, paragraph 4, of the Covenant.

3. Missionary activities and the propagation of religion

55. In the context of several reports submitted to the Special Rapporteur, in particular after the period following the tsunami which occurred on 26 December 2004 in the Indian Ocean, numerous questions have arisen in relation to missionary activities as well as humanitarian efforts and development activities carried out by groups or organizations affiliated with particular religions. In many cases, it was reported that people, mainly from the poorest parts of the population, have been induced to convert by various means, including material benefits. In some places, the authorities have responded to these concerns by enacting legislation that prohibits or limits the right to propagate a religion, which includes missionary activities and other actions aimed at persuading others to adopt a new religion, or making the right to change religion subject to certain conditions, for example making a formal declaration of conversion to a designated authority.

56. In May 2005, the Special Rapporteur travelled to Sri Lanka where she had the opportunity to investigate in situ this type of question. In Sri Lanka, numerous persons told the Special Rapporteur that missionaries, religious groups and humanitarian organizations, often from foreign countries, used material or other incentives to convert people or to induce them to convert. In response to this situation, a number of initiatives had been made to enact special legislation to prohibit religious conversions or criminalize allegedly "unethical" conversions. Many of these initiatives were started well before the tragedy of the tsunami. The report of the Special Rapporteur on her visit to Sri Lanka, which contains conclusions and recommendations with respect to the question of "unethical" conversions, will be submitted to the Commission at its sixty-second session. The following observations are therefore of a general nature and should by no means be taken as pertaining exclusively to the situation prevailing in Sri Lanka.

57. The Special Rapporteur considers that these situations raise questions both with regard to the right to freedom of religion of those who take the decision to convert (freedom of conscience and the right to change one's religion) and the right to freedom of religion of persons who perform acts leading to the conversion of others (missionary activities and the propagation of one's religion). These are taken separately below.

(a) Freedom of conscience and the right to change one's religion

58. In this respect, the Special Rapporteur would mainly refer to the arguments made earlier in this report. The right to change religion is absolute and is not subject to any limitation whatsoever. Any legislation that would prohibit or limit the right to change one's religion would be contrary to international human rights standards and the provisions mentioned above.

(b) Missionary activities and propagation of one's religion

59. Article 1 of the 1981 Declaration and article 18, paragraph 1, of ICCPR explicitly provide for the right "in public or private, to manifest [one's] religion or belief in worship, observance, practice and teaching" (emphasis added). Many human rights instruments stipulate and the Human Rights Committee hold that the right to manifest one's religion includes carrying out actions to persuade others to believe in a certain religion. For example, article 6 (d) of the 1981 Declaration states that the practice of the freedom of religion includes the freedom, "to write, issue and disseminate relevant publications." Similarly, in resolution 2005/40, the Commission on Human Rights urged States "[t]o ensure, in particular, [...] the right of all persons to write, issue and disseminate relevant publications." In its general comment No. 22 (1993) the Human Rights Committee holds that "the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, [… and] the freedom to prepare and distribute religious texts or publications" (para. 4). This thinking is reflected in the above-mentioned decision Kang v. Republic of Korea, where the distribution of communist leaflets was recognized by the Human Rights Committee as the manifestation of a belief in the sense of article 18, paragraph 1.

60. The question of missionary activities and other forms of propagating one’s religion has been at the centre of the mandate on freedom of religion since the beginning. In one of his reports, Special Rapporteur Amor considered "constitutional provisions prohibiting proselytism to be inconsistent with the 1981 Declaration and stresse[d] the need for greater respect for internationally recognized human rights norms, including freedom to convert and freedom to manifest one's religion or belief, either individually or in community with others, and in public or private, except where necessary restrictions are provided for by law" (A/51/542/Add.1/para. 134).

61. Also, while not explicitly including religious rights, article 19 of ICCPR, which protects freedom of expression, is formulated in a way that also covers missionary activities: "[T]his right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of [one's] choice". The Human Rights Committee's constant jurisprudence has deemed the protection afforded by article 19 extremely strong. [See Manfred Nowak, UN Covenant on Civil and Political Right:, CCPR Commentary (2nd revised ed.), 2005, pp. 450-452.]

62. Whereas the scope of freedom afforded to persons for the practice of their religion or belief by producing and distributing information about their religion or belief is wide, certain limitations can be imposed in accordance with article 18, paragraph 3, of the Covenant. However, it should be noted that this article allows for restrictions only in very exceptional cases. In particular the fact that it mentions the protection of "fundamental rights and freedoms" (emphasis added) of others as a ground for restriction indicates a stronger protection than for some other rights whose limitation clauses refer simply to the "rights and freedoms of others" (e.g. article 12, 21 and 22). It could indeed be argued that the freedom of religion or belief of others can be regarded as such a fundamental right and freedom and would justify limitations to missionary activities, but the freedom of religion and belief of adults basically is a question of individual choice, so any generalized State limitation (e.g. by law) conceived to protect "others'" freedom of religion and belief by limiting the right of individuals to conduct missionary activities should be avoided.

63. The test of legality of a prohibition of any act motivated by belief or religion is therefore extremely strict. In practice, the European Court of Human Rights has given some guidance concerning the distinction between permissible religious persuasion, on the one hand, and coercion on the other in Larissis v. Greece,[Larissis and Others v. Greece, European Court of Human Rights, Reports 1998-I, judgement of 24 February 1998.] the court decided that an officer of the Greek army had exploited his position of authority over his subordinates in trying to convert them. However, in Kokkinakis v. Greece,[Kokkinakis v. Greece, European Court of Human Rights, Series A. No. 260-A, judgement of 25 May 1995.] the Court did not find any violation when Jehovah's Witnesses called on their neighbour to discuss religious issues with her since that act, in the Court's view, fell under "bearing Christian witness" and was therefore protected by article 9 of the European Convention on Human Rights. Judge Pettiti, in his partly concurring opinion, made this particularly clear: "Freedom of religion and conscience certainly entails accepting proselytism, even where it is not respectable. Believers and agnostic philosophers have a right to expound their beliefs, to try to get other people to share them and even to try to convert those whom they are addressing."

64. There are, however, situations in which certain actions aimed at converting people go beyond conventional forms of missionary activities or propagation of religion. Some such actions cannot be considered as a "manifestation" of religion or belief and are therefore not protected by article 18.

65. The question that arises in this regard is how the State should address such actions. The Special Rapporteur is of the opinion that a distinction should be made between whether these actions raise a human rights concern or whether they could constitute criminal acts. Certain acts may constitute an offence under the criminal code of the State concerned and should therefore be prosecuted. In view of the Special Rapporteur, however, it would not be advisable to criminalize non-violent acts performed in the context of manifestation of one's religion, in particular the propagation of religion, including because that might criminalize acts that would, in another context, not raise a concern of the criminal law and may pave the way for persecution of religious minorities. Moreover, since the right to change or maintain a religion is in essence a subjective right, any concern raised with regard to certain conversions or how they might be accomplished should primarily be raised by the alleged victim.

66. Apart from forcible and other conversions that are improper in the sense of human rights law, there are many cases which, while not constituting a human rights violation, nevertheless raise serious concern because they disturb a culture of religious tolerance or contribute to the deterioration of situations where religious tolerance is already being challenged. The Special Rapporteur has received numerous reports of cases where missionaries, religious groups and humanitarian NGOs have allegedly behaved in a very disrespectful manner vis-à-vis the populations of the places where they were operating. The Special Rapporteur deplores such behaviour and is of the opinion that it constitutes religious intolerance, and may even provoke further religious intolerance. She considers that religious groups, missionaries and humanitarian NGOs should carry out their activities in full respect of the culture and religion of the populations concerned and abide strictly by relevant codes of ethics, including the Code of Conduct for International Federation of Red Cross and Red Crescent Societies and NGOs in Disaster Relief, [Available at: www.ifrc.org/publicat/conduct/code.asp.] as well as guidelines adopted by religious organizations.

67. In conclusion, any form of coercion by State and non-State actors aimed at religious conversion is prohibited under international human rights law, and any such acts have to be dealt with within the remit of criminal and civil law. Missionary activity is accepted as a legitimate expression of religion or belief and therefore enjoys the protection afforded by article 18 of ICCPR and other relevant international instruments. Missionary activity cannot be considered a violation of the freedom of religion and belief of others if all involved parties are adults able to reason on their own and if there is no relation of dependency or hierarchy between the missionaries and the objects of the missionary activities.

68. The Special Rapporteur wishes to underline that certain forms of "unethical" conversion are not per se contrary to international standards. Moreover, while some of these acts may not enjoy protection under human rights law, they should not as a result necessarily be seen to constitute a criminal offence. She recommends that cases of alleged "unethical" conversion be addressed on a case-by-case basis, examining the context and circumstances in each individual situation and dealt with in accordance with the common criminal and civil legislation. The Special Rapporteur is therefore of the opinion that the adoption of laws criminalizing in abstracto certain acts leading to "unethical" conversion should be avoided, in particular where these laws could apply even in the absence of a complaint by the converted person."